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Evilsizor v. Sweeney

California Court of Appeals, First District, First Division

May 27, 2015

In re the Marriage of KERI EVILSIZOR and JOSEPH SWEENEY.

Contra Costa County Super. Ct. No. MSD1301648

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Joseph Sweeney, in pro. per., for Appellant.

Schenone & Peck and Ronald G. Peck for Respondent.



Appellant Joseph Sweeney downloaded the contents of respondent Keri Evilsizor’s cell phones around the time Evilsizor gave birth to the couple’s daughter. After these dissolution proceedings were initiated a few months later, Sweeney filed with the court copies of some downloaded text messages. Evilsizor sought a restraining order under the Domestic Violence Prevention Act (DVPA) to stop Sweeney fro further disseminating the downloaded information.[1] After taking testimony and finding that Sweeney’s actions amounted to abuse under the DVPA, the trial court prohibited Sweeney from distributing the information without first receiving the court’s permission. We conclude that the order did not violate Sweeney’s constitutional rights to free speech, and we therefore affirm.


Factual and Procedural Background

Evilsizor and Sweeney were married in November 2010. Evilsizor used two phones during her marriage to Sweeney: one for the “legal side” of her business and another for the “management side” of her business that she also allowed her young son from a previous relationship to use for playing games. Sweeney claimed that he had regular access to both phones “for the purpose of taking pictures, sending e-mail, text messages, browsing the Internet, or using applications, ” and that the phones were not password protected. He also claimed that Evilsizor gave him the password to her e-mail account so that he could send e-mails for her and have “full access” to her e-mail. Evilsizor disputed these claims.

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Evilsizor gave birth to the couple’s daughter in November 2012. Around this time, Sweeney became concerned that he might not be the child’s biological father after he read a text message on his stepson’s phone leading him to believe that Evilsizor had received fertility treatments without his knowledge. He then downloaded the contents of Evilsizor’s phones using software that made it easier to read the information.[2] Sweeney obtained tens of thousands of text messages from the phones as well as information from the “notes” section of Evilsizor’s iPhone, which Evilsizor used as a diary. He testified he thought it was unnecessary to get Evilsizor’s permission before downloading the data or to tell her he had done it after the fact because he had regular access to the phones and had “previously backed up the phone to the computer” at her request. Evilsizor denied ever asking Sweeney to back up data on her phones and denied knowing he had done so.

Sweeney ultimately spent about 20 to 30 hours reviewing the text messages he downloaded. In January or February 2013, he confronted Evilsizor with information he had learned from her text messages. In March, he went uninvited to the home of Evilsizor’s parents and disclosed private and sensitive information about Evilsizor to her father.[3] Evilsizor was “very upset and shocked” when she learned of the disclosure.

That month, the parties separated, and dissolution proceedings were soon initiated. Disputes arose over various issues, and the trial court has characterized this as a “highly contentious case.” One such dispute was over child and spousal support, as well as the sharing of costs for a custody evaluation. On August 30, 2013, Evilsizor filed a request to increase Sweeney’s support payments on the ground that her income had decreased because her father had fired her from her job with his (the father’s) company. In opposing this request, Sweeney alleged that Evilsizor had colluded with her parents to falsely make it appear she had been fired.

Sweeney attached text messages to his declaration supporting his opposition. One was from October 2012 (before these proceedings began) meant to demonstrate that Evilsizor was misstating the assets at her disposal. The text

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message that appears in the record is illegible, but it apparently refers to three cases of diamond rings Evilsizor owned. Another text message was dated January 2010, when Evilsizor was in litigation with her son’s father over the custody of her son (Sweeney’s stepson). Part of the printout of the message that appears in the record is also illegible, and the text that is legible appears benign, at least when read out of context (i.e., “Keri, I’m on the train. Text works. Whassup gir? [sic]”). But according to Sweeney, the message (apparently, the portion that is illegible in the record) demonstrated that Evilsizor “could manipulate her property interests” and finances.[4]

In response to her text messages being used as exhibits, Evilsizor filed a request for a restraining order under the DVPA. She alleged that Sweeney had downloaded her private text communications to third parties, including her attorney, without her consent, and had hacked into her Facebook account, changed her password, and rerouted the e-mail associated with her Facebook account to his own account. Evilsizor claimed that as a result she suffered “extreme embarrassment, fear, and intimidation.” She also alleged that Sweeney threatened to reveal publicly more text messages and e-mails for leverage in the dissolution proceedings. She sought an order prohibiting Sweeney from further disseminating her text messages and e-mails, requiring Sweeney to return all electronically downloaded information he had accessed along with hard copies of the messages, and barring Sweeney from accessing or interfering with her internet-service provider or social-media accounts.

At some point during discovery, Sweeney provided to Evilsizor a USB drive containing about 11 to 12 gigabytes of data he had retrieved from her phones. He objected to providing the data in a different format, ...

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